CHARLIE KRATOVIL v. CITY OF NEW BRUNSWICK (L-2005-21, MIDDLESEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0239-21
CHARLIE KRATOVIL,
Plaintiff-Appellant,
v.
CITY OF NEW BRUNSWICK,
LESLIE R. ZELEDON, in her
official capacity as Municipal
Clerk and Records Custodian
of the City of New Brunswick,
and J.T. MILLER in his official
capacity as Deputy Director
and Public Information
Officer of the New Brunswick
Police Department,
Defendants-Respondents.
____________________________
Argued June 8, 2022 – Decided July 13, 2022
Before Judges Gilson, Gooden Brown, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-2005-21.
Walter M. Luers argued the cause for appellant (Cohn
Lifland Pearlman Herrmann & Knopf, LLP, attorneys;
Walter M. Luers, on the briefs).
Nicole M. Grzeskowiak argued the cause for
respondents (Hoagland, Longo, Moran, Dunst &
Doukas, LLP, attorneys; Nicole M. Grzeskowiak, of
counsel and on the brief).
PER CURIAM
This appeal arises out of requests for information about crimes in the City
of New Brunswick (the City) made under the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13. Plaintiff Charlie Kratovil submitted five OPRA
requests seeking information required to be produced under subsection 3(b) of
N.J.S.A. 47:1A-3 (3(b) Information). The City provided some information but
withheld other information, asserting it was protected as part of an investigation
in progress.
Plaintiff appeals from an August 9, 2021 final order denying his req uest
to compel the City to disclose additional information and thereby dismissing his
summary action under OPRA. Because the City asserted that the investigation
related to only certain crimes, we affirm in part, reverse in part, and remand for
further proceedings.
A-0239-21
2
I.
The material facts were not in dispute and were set forth in certifications,
including confidential certifications submitted in camera to the trial court and
this court. Plaintiff publishes "New Brunswick Today," a free newspaper
reporting on issues in the City, including crimes.
In February and March 2021, plaintiff submitted five OPRA requests to
the City's police department seeking information about aggravated assaults.
Plaintiff explained he was particularly interested in assaults involving shootings.
Two of plaintiff's requests sought 3(b) Information for all aggravated assaults
that occurred in January and February 2021 in the City. Plaintiff's other requests
sought the same 3(b) Information concerning incidents that occurred on specific
dates at specific locations in the City. In that regard, plaintiff identified
incidents for which he was seeking information and which he believed had
occurred on specific dates in January, February, and March 2021.
The City, through a designated person in the police department, responded
by providing some information but withheld other 3(b) Information. In response
to the requests seeking information concerning all aggravated assaults in
January and February 2021, the City provided two spreadsheets listing eight
incidents in January 2021 and fifteen incidents in February 2021. For each
A-0239-21
3
incident identified, the lists provided the case number, date of the incident, the
address where the crime occurred, and the criminal charges related to the crime.
The lists did not provide all 3(b) Information because it excluded information
concerning the weapon involved, if any; whether there had been an arrest;
information about the victims and suspects; and information about the
investigating law-enforcement personnel. In response to the specific aggravated
assaults identified by plaintiff, the City responded in emails providing some
information but excluded other 3(b) Information. In its responses, the City did
not state that it was withholding information, nor did it explain the grounds for
withholding certain information.
On April 1, 2021, plaintiff filed a summary action under OPRA in the Law
Division seeking to compel the City to provide the additional information
required to be disclosed under N.J.S.A. 47:1A-3(b). In addition to the City,
plaintiff named as defendants two City employees who were responsible for
responding to OPRA requests.
After the City filed its answer, the trial court held a hearing on June 8,
2021. At the hearing, the City asserted that it had withheld certain 3(b)
Information because that information was protected from disclosure due to an
investigation in progress. At the conclusion of the hearing, the trial court
A-0239-21
4
directed the City to submit certifications and information for an in-camera
review so that the court could determine if there were grounds for withholding
some of the 3(b) Information.
On August 9, 2021, after conducting an in-camera review, the trial court
issued an order denying plaintiff's request to compel the City to provide any
additional information. Although the court did not expressly state that its order
was a final order, the order effectively dismissed plaintiff's OPRA complaint
and summary action.
The trial court also issued a short statement of reasons concerning its
rulings. Without explanation, the court concluded that the City had
appropriately invoked an exemption from disclosure under N.J.S.A. 47:1A -3(b)
to justify the withholding of certain information concerning aggravated assaults
that occurred on eight days: January 2, 3, 14, 27, and 29, 2021; February 5 and
22, 2021; and March 19, 2021 (collectively, the Eight Days). Concerning the
"remaining incidents," the trial court concluded without explanation that the
City had "provided information which complies with the requirements of OPRA
and no further disclosure on these incidents will be required." The statement of
reasons did not identify how many incidents the court was referencing when it
A-0239-21
5
said the "remaining incidents." Plaintiff now appeals from the August 9, 2021
order.
II.
On appeal, plaintiff argues that information concerning crimes are public
records under OPRA and the trial court should have ordered the City to disclose
more information about those crimes. Plaintiff also argues that the trial court
did not set forth sufficient findings of facts and conclusions of law to support its
rulings.
"[D]eterminations about the applicability of OPRA and its exemptions are
legal conclusions and are therefore subject to de novo review." Simmons v.
Mercado, 247 N.J. 24, 38 (2021) (alteration in original) (quoting In re N.J.
Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017)). The trial court
reviewed the confidential appendix submitted in camera by the City and
concluded that an exemption under N.J.S.A. 47:1A-3(b) applied. Because that
was a legal conclusion, we review the question of the applicability of the OPRA
exemption de novo. O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 379
(App. Div. 2009).
The City has provided us with the in-camera materials submitted to the
trial court. Accordingly, we have reviewed the essentially undisputed facts in
A-0239-21
6
those materials and can apply the law to those facts. Indeed, in its brief on this
appeal, the City requested us to conduct a review of the materials it submitted
in camera.
"OPRA is designed to give members of the public 'ready access to
government records' unless the statute exempts them from disclosure." Rivera
v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 140-41 (2022) (quoting Barnett
v. Cnty. of Bergen, 198 N.J. 408, 421 (2009)). The purpose of OPRA is "to
maximize public knowledge about public affairs in order to ensure an informed
citizenry and to minimize the evils inherent in a secluded process." N. Jersey
Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017) (quoting Mason
v. City of Hoboken, 196 N.J. 51, 64 (2008)).
A "[g]overnment record" has been broadly defined by OPRA to include
any record "made, maintained or kept on file in the course of his or its official
business by any officer, commission, agency or authority of the State or of any
political subdivisions thereof," or any record "received in the course of his or its
official business by any such officer, commission, agency or authority of the
State or of any political subdivision thereof." N.J.S.A. 47:1A-1.1. In subsection
3 of OPRA, the Legislature directed that certain "information concerning a
criminal investigation shall be available to the public within [twenty-four] hours
A-0239-21
7
or as soon as practicable, of a request for such information[.]" N.J.S.A. 47:1A-
3(b). That subsection goes on to provide that where a crime has been reported
but no arrest has been made, the information to be disclosed includes "the type
of crime, time, location and type of weapon, if any[.]" Ibid. If an arrest has
been made, OPRA requires additional information be disclosed, including
information about victims, any person arrested, the identity of investigating and
arresting personnel, the circumstances immediately surrounding the arrest, and
circumstances concerning bail. Ibid.Subsection 3 also provides an exemption from disclosure of certain
protected information. In that regard, the statute states:
Notwithstanding any other provision of this subsection,
where it shall appear that the information requested or
to be examined will jeopardize the safety of any person
or jeopardize any investigation in progress or may be
otherwise inappropriate to release, such information
may be withheld. This exception shall be narrowly
construed to prevent disclosure of information that
would be harmful to a bona fide law enforcement
purpose or the public safety. Whenever a law
enforcement official determines that it is necessary to
withhold information, the official shall issue a brief
statement explaining the decision.
[Ibid.]
The initial question we must decide is whether the City justified
withholding certain 3(b) Information on the grounds that it was protected from
A-0239-21
8
disclosure because it would jeopardize an investigation in progress. In the
confidential certifications submitted in camera, the City explained that there was
an ongoing investigation and provided sufficient information for a court to
conclude that disclosing more than what the City had already disclosed could
jeopardize that investigation.
Critically, however, the City made that showing concerning only incidents
that occurred on the Eight Days. The certifications identified twenty other
incidents and acknowledged that disclosing additional information about those
incidents would not jeopardize an ongoing investigation. Indeed, the City stated
that it was prepared to "voluntarily" produce that additional information. The
City, however, did not simply voluntarily produce that information. Instead, it
appears to have waited for the trial court to direct it to produce that information.
When the trial court did not issue that direction, the City failed to provide the
information it conceded was not protected from disclosure under OPRA.
Because the City itself does not try to justify the withholding of 3(b)
Information concerning twenty incidents, we hold that there is no reason to
withhold that additional information. Indeed, that information should have been
disclosed by the City as soon as it conceded that it was not protected from
disclosure. We, therefore, reverse the portion of the August 9, 2021 order that
A-0239-21
9
concluded that the City need not provide additional information concerning
those twenty incidents, which the court had referred to as "the remaining
incidents." The record establishes that the trial court's conclusion concerning
the "remaining incidents" was not supported by any of the information that the
City had provided in camera.
Having concluded that plaintiff was entitled to additional information
concerning twenty incidents, we also hold that plaintiff was a partially
prevailing party under OPRA. OPRA provides that a "requestor who prevails in
any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-
6. The statute "mandate[s], rather than permit[s], an award of attorney's fees to
a prevailing party." Mason, 196 N.J. at 75. "The statute does not restrict fee-
shifting to instances of willful violations." Smith v. Hudson Cnty. Registrar,
422 N.J. Super. 387, 398 (App. Div. 2011). A plaintiff is a "prevailing party" if
he or she achieves the desired result because the complaint brought about a
change in the custodian's conduct. Teeters v. Div. of Youth & Fam. Servs., 387
N.J. Super. 423, 432 (App. Div. 2006). This is true whether the change in the
custodian's conduct was "voluntary or otherwise." Spectraserv, Inc. v.
Middlesex Cnty. Utils. Auth., 416 N.J. Super. 565, 583 (App. Div. 2010).
A-0239-21
10
The City has certified that it is prepared to "voluntarily produce" the
required 3(b) Information for most of the aggravated assaults that took place
from January to March 2021. That concession was made only after plaintiff
filed his OPRA action. Consequently, plaintiff's OPRA lawsuit achieved its
desired result regarding most of the information plaintiff was seeking.
We also note that, in its responses to plaintiff's OPRA requests, the City
failed to comply with OPRA when it did not state that it was withholding
information nor "issue a brief statement explaining the decision." See N.J.S.A.
47:1A-3(b). The City seeks to justify its inadequate responses by claiming that
it was relying on past practices of how it responded to plaintiff's earlier OPRA
requests. Improper past practices do not justify continuing practices that fail to
comply with OPRA's express directions. Accordingly, we remand this matter
and direct the trial court to conduct proceedings to determine an appropriate
award of fees to plaintiff.
In summary, we hold that (1) the City justified withholding certain
information concerning incidents that occurred on the Eight Days; (2) the City
itself acknowledged that it was prepared to produce more information
concerning twenty other incidents and, therefore, that information should be
A-0239-21
11
produced; and (3) plaintiff is entitled to a portion of his attorney's fees as a
prevailing party.
Consequently, we affirm in part, reverse in part, and remand for further
proceedings. On remand, the trial court should also require the City to establish
through certifications whether the investigation related to the incidents on the
Eight Days is still ongoing and whether there is still a justification for
withholding 3(b) Information concerning those incidents. OPRA does not
expressly state whether the government or officials withholding information as
exempt by an ongoing investigation should disclose that information when the
investigation has concluded. Nevertheless, the purpose and public policy behind
OPRA would support providing relevant updates. Given the ongoing litigation
of this case, we hold that while plaintiff's OPRA action was pending, including
the appeal, the City had an obligation to inform plaintiff when the investigation
concluded or publicly disclosed charges had been filed. Plaintiff would then
have been entitled to receive the previously withheld 3(b) Information required
to be provided under OPRA.
Reversed in part, affirmed in part, and remanded for further proceedings.
We do not retain jurisdiction.
A-0239-21
12